Nominee: Is there a point in pregnancy when you believe women lose their civil rights?

June 19, 2009

Dear Members of the Senate Judiciary Committee:

Long before President Obama selected Judge Sotomayor as his nominee to the Supreme Court, advocacy groups and media outlets identified the issue of “abortion rights” as a key issue for determining the nominee’s qualifications.1 Focusing on abortion, however, makes it possible to ignore critical issues for women that might not be readily apparent. Nearly a million women each year terminate their pregnancies, close to another million suffer miscarriages and stillbirths, and more than four million women continue their pregnancies to term: Each and every one of these women benefits from the Court’s decision in Roe v. Wade.2

Roe stands for much more than the right to terminate a pregnancy. As the Supreme Court explained in later cases, Roe has been “sensibly relied upon to counter” attempts to interfere with a woman's decision to become pregnant or to carry her pregnancy to term.3 In Roe, the Court rejected the argument that fetuses are persons and that states may treat them as such. In so doing the Court protected the Constitutional personhood of women. Thus, while the court in Roe recognized a limited state interest in potential life that permits states to prohibit access to abortion under some circumstances, the decision established that there is no point in pregnancy when women lose their fundamental civil rights – to bodily integrity, informed medical decision-making, due process, liberty, and life itself.

Roe and subsequent decisions recognized that according legal rights to fetuses separate from those of the pregnant women would not only jeopardize women’s lives and health by denying them access to legal abortion, but would also undermine substantially their dignity, their ability to participate as full and equal citizens in our society, in short their status as full Constitutional persons.4

Experience before Roe makes clear that if it were overturned hundreds of women would die each year from illegal abortions and thousand would have to risk their lives and liberty or be forced to endure unwanted pregnancies.5 While few women were arrested pre-Roe,6 legal action since then, including the arrests discussed below, suggests that it is far more likely that if abortion becomes illegal again, women themselves will be arrested.7 Experience from other countries that still have restrictive abortion laws, establishes that criminalizing abortion does little to reduce the rate at which women seek to terminate their pregnancies.8 Instead, it determines the conditions, often dangerous and demeaning, under which women do so.9

When laws criminalizing abortion were originally passed in the United States, one justification was to protect pregnant women from what had been, but is no longer, a dangerous procedure. Today the primary argument for outlawing abortion is that the “unborn” have separate legal rights. As Ramesh Ponnuru, a conservative writer, explained in a piece imagining life after Roe: “The crucial legal goal of the pro-life movement is . . . that unborn children be protected in law.”10 This is one reason why the harm of overturning Roe extends beyond the issue of abortion.

For example, the claim that fetuses have legal rights independent of pregnant women, or that the state may assert such rights on behalf of fetuses, has been invoked to justify court orders taking custody of pregnant women and forcing them to undergo major surgery for the alleged benefit of the fetus.11 In one case, later overturned on appeal, the surgery resulted in the death of the pregnant woman and her baby.12 Claims of fetal rights were used to justify extraordinary state action against a Florida woman who wanted to have a vaginal birth after a previous delivery by Cesarean surgery. When she was near delivery, an armed Sheriff came to her home, took her into custody, strapped her legs together and transported her to a hospital, where, without any opportunity to challenge the state’s actions, she was forced to undergo major surgery that she believed was unnecessary and dangerous to her and her baby. When she sued for violations of her civil rights, including deprivation of physical liberty and forced surgery without any semblance of due process, a federal district court said that "[w]hatever the scope of Ms. Pemberton's personal constitutional rights in this situation, they clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child."13

The argument that fetuses have separate legal rights (as opposed to moral value) has been used to justify the arrest of hundreds of pregnant women who love their children but who have not been able to overcome an addiction in the short duration of a pregnancy.14 This claim has been used to justify policies targeting low-income women of color for illegal searches and seizures.15 It has been used to justify the arrest and detention of pregnant women who drank alcohol,16 who exercised their right to informed consent by refusing cesarean surgery,17 who didn’t get to the hospital quickly enough on the day of delivery,18 who were in a “dangerous” location while pregnant,19 who refused to submit to state ordered prenatal exams,20 who are HIV-positive,21 and who have experienced miscarriages and stillbirths.22 This argument has been used to justify discrimination against women in the workplace.23 It has been used as the basis for civil suits on behalf of children against their mothers for alleged acts of negligence during pregnancy.24 It has been used to appoint or consider appointing guardians ad litem for fetuses not only to prevent abortions but also to determine what medications the pregnant woman would be allowed to take and how she might be required to deliver.25

Fortunately, these horrific cases do not represent controlling legal precedent. Many of the cases were dismissed when challenged and most of the lower court decisions upholding these state actions were overturned on appeal. Those cases that survived do so only as exceptional outliers, in part, because Roe stands as the law of the land.

Abortion is undeniably a key and contentious issue in the confirmation process, but it is important to remember that 60% of women having abortions are already mothers26 and that by age 44, approximately 84% of all women in the United States have been pregnant and given birth.27

Because decisions regarding Roe v. Wade will inevitably affect all pregnant women, we the undersigned request that the Judiciary Committee ask Judge Sotomayor (and every future Supreme Court nominee): Is there a point in pregnancy when you believe women lose their civil rights? If so, what is that point; and on what do you base your conclusion?

Despite the many issues affecting women's health and lives, bills to further restrict abortion are likely to be the primary focus of your legislature's session this year. As a result of this extensive attention to this one aspect of pregnant women's lives, chances are that your state legislature will not address many other health issues of concern to pregnant women and mothers — not breast cancer nor heart disease, not the lack of health insurance for millions of women and children nor the lack of access to mother-friendly childbirth. Here are some suggestions for action you and your state can take to ensure that policies to advance a culture of life, values the women who give that life:Download file